R. v. Sigsworth, 2022 BCPC 91

Citation: R. v. Sigsworth 2022 BCPC 91 Date: 20220506 File No: 35766-2 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HOUSTON ALEXANDER THOMAS SIGSWORTH RULING ON SECTION 537(1)(J.1) APPLICATION OF THE HONOURABLE JUDGE D. PATTERSON (appearing by videoconference) Counsel for the Crown: D. Hartney appearing by videoconference Counsel for the Defendant: D. McNamee appearing by videoconference Place of Hearing: Williams Lake , B.C. Date of Hearing: May 6, 2022 Date of Judgment: May 6, 2022 [ 1 ] THE COURT: The defendant is seeking an order pursuant to s. 537(1) (j.1) and s. 715.23 of the Criminal Code , allowing the

defendant to attend his preliminary inquiry scheduled for October 11, 2022, in Williams Lake, British Columbia, utilizing the technology known as video conferencing via MS Teams. There has been an affidavit filed in support of the application. I am the assigned preliminary inquiry judge. [ 2 ] As I have heard this application during the course of a busy virtual bail court day in VR1 of the Northern Bail Pilot Project, I reserve the right to order a transcript and edit this ruling to make it grammatically correct and more readable.

I also reserve the right to add the full citations and quotes from any case law that I refer to in this ruling. The result and substance of my decision will not change. [ 3 ] Mr.

Sigsworth is charged with a single count of drug trafficking and the Federal Crown proceeded by way of Indictment: Count 1: Houston Alexander Thomas Sigsworth, on or about the 14th day of March, 2020, at or near the City of Williams Lake, in the Province of British Columbia, did unlawfully traffic in a controlled substance, to wit: Diacetylmorphine (heroin) and Fentanyl, contrary to Section 5(1) of the Controlled Drugs and Substances Act . [ 4 ] On March 9, 2022, Mr. Sigsworth elected trial by Supreme Court Judge without a jury.

He also elected to have a preliminary inquiry. [ 5 ] I can and do take judicial notice that since March of 2020, as a direct result of the COVID-19 pandemic, the use of audioconferencing and videoconferencing in the courts of British Columbia has greatly increased and changed how many judges, lawyers, and litigants conduct their judicial affairs. I rely on R. v. Spence , 2005, SCC 71 , as authority for doing so. The facts that I am taking judicial notice of are generally accepted. The facts I rely upon are not the subject of debate among reasonable persons.

Furthermore, they are facts that are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [ 6 ] Despite the increase to the use of audioconferencing and videoconferencing in British Columbia's courts, the default position remains, subject to a practice directive of this court, that all participants appear personally in court as set out in s. 715.21 of the Criminal Code : 715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally.

I take the position that a preliminary inquiry is a proceeding for purposes of the Criminal Code . [ 7 ]

Section 715.22 of the Criminal Code sets out the purpose and principles for the application of the "remote appearance" provision: 715.22 The purpose of the provisions of this Act that allow a person to appear at, participate in or preside at a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice. [ 8 ] Access to justice is important.

Videoconferencing has a very important role to play in ensuring that justice is not only paid lip service to, but also actually accomplished. In the right situation and with the right technology, videoconferencing adds value and access to our criminal justice system. [ 9 ] Nevertheless, our courts do need to be careful to guard against allowing shortcuts that can have a detrimental effect on the court process. Factors to be considered include:

(1) The ability of a judge to communicate with counsel,

(2) A judge's and counsel's observations of witnesses in court,

(3) Defence counsel's ability to communicate with their clients and visa versa,

(4) The ability of an accused person to see the individuals who are physically in the courtroom,

(5) The ability of judges, court clerks, counsel, and witnesses to view, file with the court, and comment on exhibits,

(6) If identification is in issue, trial by videoconferencing, or in this case a preliminary inquiry by videoconferencing, may be problematic; and

(7) The court being able to control its own processes, especially when technical issues develop with the videoconferencing stream or the in - court recording equipment is unable to properly record. [ 10 ] I pause to note that technical issues have plagued MS Teams throughout the COVID-19 period.

Problems include choppy and frozen videoconferencing streams, participants locked out of the MS Teams meeting, and the in - court recording equipment unable to record what is happening in court. [ 11 ] Regardless of potential pitfalls, videoconferencing, in the right situation, can be a powerful tool in allowing a lawyer, a defendant, or a witness to participate in the court process when otherwise they would be unable to attend court or suffer a personal injustice by having to attend personally. [ 12 ] The order sought by the defendant in this case is discretionary.

Best practice is for the party seeking the order to establish an evidentiary foundation for the order sought. In the usual course, a person wishing to attend a preliminary inquiry or a trial remotely, should prepare and file with the court an affidavit along with the Application to a Judge. The affidavit should set out the factual basis for the application and in the case of a preliminary inquiry, address each and every one of the statutory criteria set out in s. 537(1) (j.1) and s.

715.23 . [ 13 ] Section 537(1) of the Criminal Code says: 537.1 A justice acting under this part may: (j.1) permit, on the request of the accused, that the accused be out of court during the whole or any part of the inquiry on any conditions that the justice considers appropriate; [ 14 ]

Section 715.23 of the Criminal Code says:

(1) Except as otherwise provided in this Act, the court may order an accused to appear by audioconference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including (

a) the location and personal circumstances of the accused; (

b) the costs that would be incurred if the accused were to appear personally; (

c) the suitability of the location from where the accused will appear; (

d) the accused’s right to a fair and public hearing; and (

e) the nature and seriousness of the offence. [ 15 ] As I indicated earlier, an affidavit has been filed in this case. While it does not address each of the criteria set out in s. 715.23 , the affidavit does -- when supplemented by the submissions made by defence counsel earlier today -- set out the factual rationale for having Mr. Sigsworth appear at his preliminary inquiry by videoconferencing through the technology known as MS Teams. [ 16 ] Specifically, Mr.

Sigsworth is on a release order and as part of that bail he is required to live at the Adult and Teen Child Society facility in Lake Country, British Columbia. Mr. Sigsworth is in a one-year program there and it would be extremely difficult for him to leave the facility and travel to Williams Lake to attend his one-day preliminary inquiry. [ 17 ] Accordingly, out of a balance of both convenience and the reality that Mr.

Sigsworth will have a difficult, if not impossible, time getting to Williams Lake, never mind, quite frankly, the temptations that may come along if he is allowed out of the treatment facility to attend his preliminary inquiry in Williams Lake, which is not an insignificant distance away from Lake Country, he says that he should be allowed to attend by videoconferencing and that I should exercise my discretion to allow him to do so. [ 18 ] Counsel for Mr. Sigsworth has told me that he has met with Mr. Sigsworth via videoconferencing and that it worked well. Counsel also told me that should there be a need for Mr.

Sigsworth and himself to communicate during the course of the preliminary inquiry, they will let me know and counsel will step out of the courtroom and have a private communication with Mr. Sigsworth. Counsel is of the view, and urges upon me, to find that the fact his client will be appearing virtually for the preliminary inquiry will not in any way, shape, or form hinder his ability to communicate with his client and will not hinder Mr. Sigsworth's ability to communicate with him. [ 19 ] I should note, as well, that in this particular case, the Federal Crown has taken no position on the application.

I do not know the alleged facts of the case. They have not told me if identification will be in issue. Rather, Federal Crown has simply said, "Your Honour, this is my friend's application. If you feel it is appropriate, go ahead and grant it. We are not objecting to it." [ 20 ] In the present case, being an indictable matter set for preliminary inquiry, I do find that s. 537 and s. 715.23 of the Criminal Code allow for more workability than the interplay between 715.23 and s. 650 .

Specifically, I am of the opinion that in relation to preliminary inquiries, the wording in s. 537(1) (j.1), when read in concert with s. 715.23 , makes it clear that a defendant need not be physically present in the courtroom, subject to any conditions that the judge hearing the preliminary inquiry considers appropriate. [ 21 ] Because the Provincial Court of British Columbia utilizes MS Teams as its preferred videoconferencing platform for participants outside of courthouses, in cases such as this one, where the defendant is seeking to participate through MS Teams and each of the criteria set out in 715.23 were not addressed in an affidavit, including that the defendant has downloaded and tested MS Teams to ensure that it will work for them, it would have been preferable if Mr.

Sigsworth had appeared for today's application by MS Teams in order to confirm for us his ability to participate in the preliminary inquiry by MS Teams. Nevertheless, as I indicated earlier, counsel for Mr.

Sigsworth is confident that the videoconferencing will work well for purposes of the preliminary inquiry. [ 22 ] Furthermore, since we continue to have issues with the quality of MS Teams videoconferencing in court -- including, as I referred to earlier, poor audio and/or video, dropped calls, frozen video screens, participants only partially on screen, software issues, and participants unable to join the court meeting -- the court must have in place contingency plans should the MS Teams link not work properly.

In this particular case, given that it is a preliminary inquiry, we will stand down, see if we can fix the issues, and if we are unable to do so, we will then have the option of either ordering that Mr. Sigsworth attend the remainder of his preliminary inquiry in person or simply adjourn to another day and try again by MS Teams. [ 23 ] As I have noted in other decisions, including R. v. Munro , 2022 BCPC 48 , when MS Teams works properly, it is great. It is a great benefit, and it really does help with the administration of justice. However, when it does not work properly, it is horrible.

It is not beyond the realm of possibilities that one or more parties involved in a preliminary inquiry using MS Teams will launch an appeal of the decision based on audio or video issues, an inability to communicate with counsel, or a lack of understanding of what they consented to in the first place when they agreed to have their preliminary inquiry utilizing MS Teams.

Simply put, it is impossible to foresee every situation that might arise in the course of a preliminary inquiry utilizing MS Teams. [ 24 ] In addition to ensuring that the technical requirements of MS Teams are satisfied, defendants who propose utilizing MS Teams to attend their preliminary inquiry virtually should read and understand NP 21 – Notice to the Profession and Public – Virtual Proceedings

and Remote Attendance in the Provincial Court -- which was last updated on January 19, 2022. NP21 provides direction and information for anyone who will attend a virtual or in-person proceeding in the Provincial Court remotely by audioconference (including telephone or Microsoft Teams) or videoconference (including Microsoft Teams). Furthermore, defendants who propose utilizing MS Teams to attend their preliminary inquiry virtually, should read and understand the Guide for Appearing in the Provincial Court Using Microsoft Teams .

The Guide provides specific information on how to use MS Teams for court appearances. Both documents are available for reading on the Provincial Court of British Columbia website. Decision: [ 25 ] Given the affidavit materials on this case, the submissions of Mr. McNamee on behalf of Mr. Sigsworth, and the Crown taking no position, I am of the view that this is an appropriate case to utilize my discretion and to allow Mr. Sigsworth to appear at his preliminary inquiry through video conferencing, utilizing the medium known as MS Teams. [ 26 ] Accordingly, I order that Mr.

Sigsworth attend his preliminary inquiry, scheduled for October 11, 2022, in Williams Lake, British Columbia, by video conferencing, utilizing MS Teams. [ 27 ] I further order that the court registry prepare and have a MS Teams link available and they provide that information to defence counsel so that Mr. Sigsworth can join the MS Teams meeting. [ 28 ] Finally, I order that Mr.

Sigsworth shall, prior to the commencement of the preliminary inquiry, read and understand NP 21 – Notice to the Profession and Public – Virtual Proceedings and Remote Attendance in the Provincial Court , as well as the Guide for Appearing in the Provincial Court Using Microsoft Teams . [ 29 ] Thank you. (RULING CONCLUDED)